IT is not amusing but highly reprehensible to see the Sangh Parivar lay claim to B.R. Ambedkar and his rich intellectual and political legacy. Twenty-five years ago it tried the same trick with Gandhi, whom its mentor, M.S. Golwalkar, and L.K. Advani had scorned. Now the Rashtriya Swayamsewak Sangh (RSS) Sarkaryawah, Bhaiyaji Joshi, proclaims that Ambedkar was a “Mahamanav” who “needs to be studied and understood in totality” (sub-text: discard elements in the whole which the RSS cannot accept). This one takes the cake: “We should collectively create a harmonious society for which he fought throughout his life.” He went so far as to compare RSS founder K.B. Hedgewar with Ambedkar and assert that “the objectives of both were same” ( Organiser ; April 26, 2015).
The Parivar attacked Ambedkar for his Hindu Code Bill and was up in arms when his work, Riddles in Hinduism , was published. ( Dr. Babasaheb Ambedkar: Writings and Speeches , Education Department, Government of Maharashtra, Vol. 4. This entire series is ably compiled from his published and unpublished writings; cited volume wise herein.)
Ambedkar, on his part, was unsparing in his critiques in that and in other works. “Hindu society is a myth. The name Hindu is itself a foreign name. It was given by the Mohammedans to the natives for the purpose of distinguishing themselves. It doesn’t occur in any Sanskrit work prior to the Mohammedan invasion…. Hindu society as such does not exist. It is only a collection of castes…. Castes don’t even form a federation. A caste has no feeling that it is affiliated to other castes except when there is a Hindu-Muslim riot” ( Annihilation of Caste , Chapter VI, Vol. 1). Volume 12 contains this dissertation for the M.A. Examination in Columbia University (1913-15).
The Sangh Parivar is unlikely to be pleased by his understanding of India’s history as these extracts suggest: “It is a mistake to suppose that the Mussalman sovereigns of India were barbarous and despots. On the other hand, majority of them were men of extraordinary character. Mohammed of Ghazni ‘showed so much munificence to individuals of eminence that his capital exhibited a greater assemblage of literary genius than any other monarch in Asia has ever been able to produce. If rapacious in acquiring wealth, he was unrivalled in the judgment and grandeur with which he knew how to expend it….’
“Babar, the founder of the Moghul dynasty in India, found the country in a prosperous condition and was surprised at the immense population and the innumerable artisans everywhere. He was a benevolent ruler and public works marked his statesmanship. Sher Shah, who temporarily wrested the throne from the Moghul, was, excepting Akbar, the greatest of Mohammedan rulers and, like Babar, executed many public works….
“With the advent of the English, things began to change. Prosperity bade fair to India and perched itself on the Union Jack. The evil forces were set forth both on the side of the Parliament and the East India Company. The Rule of the Company was anything but wise, it was rigorous, it gave security but destroyed property…. India contributed or rather was made (to) contribute to the prosperity of England in many ways.” Had he lived, Ambedkar would have denounced the Parivar for the demolition of the Babri Masjid.
But neither can the Congress claim him as one of its own. Volume 9 in that series published his excellently documented works, What Congress and Gandhi Have Done To The Untouchables and Mr. Gandhi and the Emancipation of the Untouchables .
It is trite to say that praise of Ambedkar has tended to obscure his contributions as a constitutionalist. However, even this recognition does less than full justice to that tower of intellect. He was head and shoulders above constitutional lawyers like Tej Bahadur Sapru. For, he was steeped in history—Indian, English European and American—in Hinduism, in the Vedas and the Upanishads, and in Economics. His erudition in constitutional law was rooted in these intellectual disciplines and raised him above the mere constitutional lawyer, however famous. In this, he was peerless. Learning was harnessed to a razor-sharp mind, skilled in logic and dialectics.
Neither academia nor the media have acquitted themselves creditably. Even half a century after his death, a definitive biography has not been written. The media revels in trivia, of which the most ridiculous is the persistent statement, even in leading dailies, that he “wrote” the Constitution at Wayside Inn, a restaurant in the Kala Ghoda neighbourhood of Mumbai. He did go there when he practised at the High Court. But from 1942 he lived mostly in New Delhi—moreover, one cannot write a Constitution on the dining table of a restaurant.
Enriched mind On the other hand, his notable efforts on India’s behalf are ignored; for example, his searching cross-examination of Winston Churchill at the Round Table Conference (RTC) in London. Indeed, his role at the RTC itself is underplayed, with attention focussed almost exclusively on his differences with Gandhi and his advocacy of the cause of the untouchables, as they were then known. This is of a piece with neglect of the RTC’s proceedings themselves. They were a preparation for the drafting of the Government of India Act, 1935, which served as India’s Constitution from April 1, 1937, to August 14, 1947 (minus the federation part), and, with adaptations, from August 15, 1947, to January 25, 1950. The Constitution of India came into force the next day and it is based largely on the Act of 1935. Debates in the RTC’s committees were better informed than those in the Constituent Assembly since the former had the best of India’s legal talent. On some of the provisions of our Constitution, notably the moribund Inter-State Council, it is from the deliberations in London, rather than those in New Delhi, that one acquires an understanding of their raison d’etre . Uniquely, Ambedkar was an active participant in both.
However, well before that he had enriched his mind with a deep study of constitutionalism. Unlike other constitutional lawyers, his study of history, political science and economics had shaped his outlook considerably.
Even as far back as January 27, 1919, he revealed the depth of his knowledge in his written statement and evidence before the Southborough Committee on Franchise. He differed from the British as well as the simplistic Indian approach. He reckoned with India’s social diversities, which the Congress steadfastly refused to do. He said, “Except the Hindus, the rest of the divisions are marked by such complete freedom of communication from within that we may expect their members to be perfectly like-minded with respect to one another. Regarding the Hindus, however, the analysis must be carried on a little further. The significant fact about the Hindus is that before they are Hindus they are members of some caste. The castes are so exclusive and isolated that the consciousness of being a Hindu would be the chief guide of a Hindu’s activity towards non-Hindus. But as against a Hindu of a different caste, his caste-consciousness would be the chief guide of activity. From this, it is plain that as between two Hindus, caste like-mindedness is more powerful than the like-mindedness due to their both being Hindus.” (Vol. 1, page 249.)
The problem was to devise an electoral system that would enable the minorities—religious and caste—to be properly represented in the legislature. “The Untouchables are usually regarded as objects of pity but they are ignored in any political scheme on the score that they have no interests to protect. And yet, their interests are the greatest. Not that they have large property to protect from confiscation. But they have their very persona confiscated. The socio-religious disabilities have dehumanised the untouchables and their interests at stake are therefore the interests of humanity. The interests of property are nothing before such primary interests…. The Congress is largely composed of men who are by design political Radicals and social Tories. Their chant is that the social and the political are two distinct things having no bearing on each other. To them the social and the political are two suits and can be worn one at a time as the season demands” (Vol. 1, pages 255 and 263). He proposed his own scheme in a supplementary written statement.
Ambedkar was in no condition to boycott the Simon Commission. His counsel was not sought by the Motilal Nehru Committee, which was appointed by the All Parties Conference to prepare a draft Constitution of India (1928). He prepared a detailed report for the Simon Commission. One is struck by his nationalist fervour in advocating a powerful Centre with power “to coerce a recalcitrant or rebellious Province acting in a manner prejudicial to the interests of the country”. This was two decades before the provision for President’s rule in the States was adopted by the Constituent Assembly.
At the RTC in London, he attacked the princes’ claims and spoke up for the rights of Indians. In the real sense of those hackneyed words, Ambedkar was a freedom fighter. The Secretary of State for India, Sir Samuel Hoare, was put in a corner when he deposed before the Joint Committee on Indian Constitutional Reform.
“Dr B.R. Ambedkar: I think there is a general agreement that the ultimate goal of India’s Constitution is to be Dominion status?
Sir Samuel Hoare: It has constantly been so stated.
Dr B.R. Ambedkar: So that on the question of the ultimate goal, there is really no dispute?
Sir Samuel Hoare: That would be so, yes.
Dr B.R. Ambedkar: Now what I want to ask you is this: in view of that, would you be prepared to put this in the Preamble to the Government of India’s Constitution that India would be Dominion status, leaving the question of the time and the pace to be determined by circumstances as they arise?
Sir Samuel Hoare: I do not think here and now I would like to give a pledge as to what is or is not put in the Preamble of an Act of Parliament. I, myself, am prejudiced against Preamble of Acts of Parliament, for reasons good or bad, and I would rather say neither yes nor no to Dr Ambedkar’s question.”
At one point, Hoare acknowledged that “Dr Ambedkar’s very acute mind has discovered a gap in the White Paper…. It is an omission that we propose to set right in any final draft”.
The majority and the minorities Ambedkar was rightly oppressed by the reality that Indian society had a permanent communal majority and permanent communal minorities. Sample these comments: “People who rely upon majority rule forget the fact that majorities are of two sorts: (1) Communal majority and (2) Political majority. A political majority is changeable in its class composition. A political majority grows. A communal majority is born. The admission to a political majority is open. The door to a communal majority is closed. The politics of a political majority are free to all to make and unmake. The politics of a communal majority are made by its own members born in it.
“How can a communal majority run away with the title deeds given to a political majority to rule? To give such title deeds to a communal majority is to establish a hereditary government and make the way open to the tyranny of that majority. This tyranny of the communal majority is not an idle dream. It is an experience of many minorities.” On another occasion, he wrote: “In India, the majority is not a political majority. In India the majority is born; it is not made. That is the difference between a communal majority and a political majority. A political majority is not a fixed or a permanent majority. It is a majority which is always made, unmade and remade. A communal majority is a permanent majority fixed in its attitude. One can destroy it, but one cannot transform it. If there is so much objection to a political majority, how very fatal must be the objection to a communal majority?... My proposals do not ask the Hindus to accept the principle of unanimity. My proposals do not ask the Hindus to abandon the principle of majority rule. All I am asking them is to be satisfied with a relative majority. Is it too much for them to concede this?… Without making any such sacrifice, the Hindu majority is not justified in representing to the outside world that the minorities are holding up India’s freedom. This false propaganda will not pay. For, the minorities are doing nothing of the kind. They are prepared to accept freedom and the dangers in which they are likely to be involved; provided they are granted satisfactory safeguards.”
In a memorandum on “States and Minorities”, he wrote: “Unfortunately for the minorities in India, Indian nationalism has developed a new doctrine which may be called the Divine Right of the Majority to rule the minorities according to the wishes of the majority. Any claim for the sharing of power by the minority is called communalism, while the monopolising of the whole power by the majority is called nationalism.”
In the plenary session of the RTC, he declared: “We hold that the problem of the depressed classes will never be solved unless they get power in their own hands .” That alone, rather than mere safeguards, can assure protection to the minorities—a share in power.
It was formidable intellectual equipment that Ambedkar brought to bear on his tasks in the Constituent Assembly from 1946. He understood better than most what was demanded of its members and, later, of those who worked it. In 1943 he approvingly quoted these wise words of Balfour: “If we would find the true basis of the long-drawn process which has gradually converted medieval monarchy into a modern democracy, the process by which so much has been changed and so little destroyed, we must study temperament and character rather than intellect and theory. This is a truth which those who recommend the wholesale adoption of British institutions in strange lands might remember with advantage. Such an experiment can hardly be without its dangers. Constitutions are easily copied; temperaments are not and if it should happen that the borrowed Constitution and the native temperament fail to correspond, the misfit may have serious results. It matters little what other gifts a people may possess if they are wanting in these which, from this point of view, are of most importance. If, for example, they have no capacity for grading their loyalties as well as for being moved by them; if they have no natural inclination to liberty and no natural respect for law; if they lack good humour and tolerate foul play; if they know not how to compromise or when; if they have not that distrust of extreme conclusions which is sometimes misdescribed as want of logic; if corruption does not repel them; and if their divisions tend to be either too numerous or too profound, the successful working of British institutions may be difficult or impossible. It may indeed be least possible where the arts of parliamentary persuasion and the dexterities of party management are brought to their highest perfection. ” The stratagems available in the parliamentary system are used without respect for its true spirit.
Constitutional morality Ambedkar’s three warnings in the Constituent Assembly as it completed its labours in November 1949 are often quoted—the perils of hero worship; satyagraha or civil disobedience; and neglect of social and economic uplift. All three have gone unheeded, though. But even more tragic is the utter indifference to the far more insightful remarks he made in the Constituent Assembly on November 4 while introducing the Draft Constitution:
“I agree that administrative details should have no place in the Constitution. I wish very much that the Drafting Committee could see its way to avoid their inclusion in the Constitution. But this is to be said on the necessity which justifies their inclusion. Grote, the historian of Greece, has said: ‘The diffusion of constitutional morality, not merely among the majority of any community but throughout the whole, is the indispensable condition of government at once free and peaceable; since even any powerful and obstinate minority may render the working of a free institution impracticable, without being strong enough to conquer ascendancy for themselves.’
“By constitutional morality Grote meant ‘a paramount reverence for the forms of the Constitution, enforcing obedience to authority acting under and within these forms yet combined with the habit of open speech, of action subject only to definite legal control, and unrestrained censure of those very authorities as to all their public acts combined too with a perfect confidence in the bosom of every citizen amidst the bitterness of party contest that the forms of the Constitution will not be less sacred in the eyes of his opponents than in his own.’
“While everybody recognises the necessity of the diffusion of constitutional morality for the peaceful working of a democratic Constitution, there are two things interconnected with it, which are not, unfortunately, generally recognised. One is that the form of administration has a close connection with the form of the Constitution. The form of the administration must be appropriate to and in the same sense as the form of the Constitution. The other is that it is perfectly possible to pervert the Constitution, without changing its form by merely changing the form of the administration and to make it inconsistent and opposed to the spirit of the Constitution. It follows that it is only where people are saturated with constitutional morality such as the one described by Grote that one can take the risk of omitting from the Constitution details of administration and leaving it for the legislature to prescribe them. The question is, can we presume such a diffusion of constitutional morality? Constitutional morality is not a natural sentiment. It has to be cultivated. We must realise that our people have yet to learn it. Democracy in India is only a top-dressing on an Indian soil which is essentially undemocratic ” ( Constituent Assembly Debates ; Vol. 7, page 38).Now, 67 years later, constitutional morality is far weaker than it was then. It barely exists.
The authors of the Constitution opted for the British parliamentary system as a matter of course. At the very outset of their deliberations, at a joint meeting, on June 5, 1947, of the Union Constitution Committee and the Initial Constitution Committee. Vallabhbhai Patel announced the decision in the Constituent Assembly on July 15, 1947: “Both these committees met and they came to the conclusion that it would suit the conditions of this country better to adopt the parliamentary system of Constitution, the British type of Constitution with which we are familiar” ( CAD , Vol. IV, page 578).
However, as Gladstone said, the British Constitution “presumes more boldly than any other, the good faith of those who work it”. As a parliamentary committee said, the “understandings and habits of mind” by which the Constitution functions are “bound up with the growth of mutual confidence between the great parties of the State, transcending the political differences of the hour”. The Constitution is rooted in a national consensus. It works on the understanding that the system is more important than the immediate political gain. Public opinion acts as a referee.
Flouted from the outset India’s leaders began flouting the Constitution from the very outset. President Rajendra Prasad raised a hue and cry over the imposition of President’s Rule in Punjab in June 1951. The office of the President, and later the judiciary, suffered. The civil service was suborned. Governors became dalals of the political party in power at the Centre.
It had all begun fairly early; as far back as 1937, when the Congress had its first taste of power in the provinces. The issue was whether the Speaker of the Uttar Pradesh Assembly, P.D. Tandon, should resign from the Congress. Both Gandhi and Nehru strongly asserted that he should not. That was the beginning of the departure from British conventions. They have been abandoned now, reducing the Constitution to a skeleton denuded of life and blood. The judiciary was no less eager to ignore British judicial culture. One gets a flavour of the gap between the Indian and British judicial cultures from an erudite work, The English Judges: Their Role in the Changing Constitution by Robert Stevens. He is a practising barrister, a Bencher of Gray’s Inn, to which Ambedkar belonged, and an academic as well. Two quotes from it suffice to drive the point home. The Times (London) criticised in these terms on March 10, 2004, one of the finest Lords, Chief Justice Lord Woolf. It said he “cannot quite make up his mind whether he is a liberal reformer or the shop steward for the only trade union in the country whose members wear wigs and not hard hats or cloth caps”.
Sometime back this writer said in these pages that the Army is the country’s most powerful trade union. I should add that judges of the Supreme Court have been as ardently trade unionist. Stevens sharply remarks, “Judges choosing judges is the antithesis of democracy” (page 144). We have had this obscenity for nearly a quarter of a century thanks to the ipse dixit of the Supreme Court in blatant violation of the Constitution. It passed muster because we have had weak governments since 1991. As Lord Bingham said in 2001: “The courts tend to be most assertive…when political organs of the state are least effective.”
On November 1, 1948, Ambedkar said: “I feel that it [the Constitution] is workable, it is flexible and it is strong enough to hold the country together both in peace time and in war time. Indeed, if I may say so, if things go wrong under the new Constitution, the reason will not be that we had a bad Constitution. What we will have to say is that Man was Vile” ( CAD , Vol. 7, pages 43-44).
He resigned from the Union Council of Ministers on September 27, 1951, fought the first general election in 1952 in opposition to the Congress, and lost. Differences with the ruling party widened to the extent that he delivered an embittered and unflattering disavowal in the Rajya Sabha on September 2, 1953. “People always keep on saying to me, ‘Oh you are the maker of the Constitution’. My answer is I was a hack. What I was asked to do, I did much against my will.” He added: “I am quite prepared to say that I shall be the first person to burn it out. I do not want it. It does not suit anybody….”
Ambedkar’s role in the framing of the Constitution has been either exaggerated or underestimated. The style and content of his performance in the Constituent Assembly as the prime mover of the Draft Constitution have been neglected completely.
He was capable of a shocking factual error on a defining moment in Canada’s constitutional history, the Governor-General’s refusal of a dissolution to Prime Minister Mackenzie King in 1926. He tended to be perfunctory, even testy and short, in his replies ( CAD ; Vol. 7, page 270). His health was failing.
It is, however, not so much his admirable piloting of the Constitution in the Constituent Assembly as his vision, the spirit behind the entire enterprise, and the fundamentals he propounded, which alone make the text meaningful, which compel admiration.
The vision was abandoned and the fundamentals were flouted. Lesser men came after him.